S.G.J.K. Investments Pty Ltd Atf Siv's Seafood Restaurant (Migration)

S.G.J.K. Investments Pty Ltd Atf Siv's Seafood Restaurant (Migration) [2020] AATA 4041 (25 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  S.G.J.K. Investments Pty Ltd Atf Siv's Seafood Restaurant
CASE NUMBER:  1800731
HOME AFFAIRS REFERENCE(S):          BCC2016/3381539
MEMBER:Warren Stooke AM
DATE:25 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 25 September 2020 at 6:15pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – tasks of position – supervisor or manager – tasks compared to ANZSCO descriptions – breadth and responsibility of role – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 12 October 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the delegate determined that the position designated as Retail Manager was not responsible for setting the overall direction and objectives of the business and that these tasks are performed by one or both Directors.
The applicant appeared before the Tribunal on 20 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gurant Singh, the nominee for the position of Retail Manager.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 20 December 2017 and that he understood the content and meaning of the decision. In this regard, the applicant stated that the application was refused because the Case Officer was of the opinion that Mr Singh was not performing all the duties and was only managing the staff and that all decisions were made by Mr Sharma.
The applicant confirmed to the Tribunal that a copy of the delegate’s decision was provided to the Tribunal with the applicant’s application.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant provided evidence that the business is located in Mackay and is a seafood restaurant named Siv’s Seafood Restaurant that has an ABN 87 286 924 124 and was first registered on 18 August 2014 with ASIC.
The applicant provided evidence that the business has two directors, Kulwinder Singh and himself, Shalabh Sharma.
The applicant stated that the business sells fish; squid rings; calamari; hot dogs and grilled take-aways and the shop has a drive-in take-away, together with seating for 20-25 people.
The applicant stated that as a director he is very much inactive and based in Brisbane where he has another business. He also stated that his partner, Kulwinder Singh, lives in Brisbane. He said that he has had 12 years in hospitality, including working as a cook in Nandos and set up the business in 2014.
The applicant provided evidence that the nominee was employed with the business in 2014 and that the restaurant has 8 to 10 employees, which fluctuates, and includes 2 cooks, front of house staff; drivers; and take-away wrap staff.
The applicant provided the Tribunal with evidence that the position was advertised and that the nominee was selected based upon the required skills and competencies required for the business.
The applicant confirmed to the Tribunal that all employees were provided with a Fair Work Information Statement at the time of engagement.
The Tribunal asked the applicant to explain the duties undertaken by the nominee, which he stated included the following:
·Rostering;
·Day to day operations;
·Ordering of stock;
·Marketing through local pamphlet drops;
·Preparing notices on lunch specials (designed to turnover stock prior to useby)
·Paying the rent and liaises with the landlord and arranges lease terms and the contract;
·Accounts; budget; and stock take;
·Interviews and recruitment (facebook);
·Invoice payments and banking, with access to the bank accounts;
·Evaluation of the market for quality and purchases;
·All duties that need to be done;
The applicant provided evidence that in terms of the trading data and that the business enjoyed healthy sales of $766,648, of which $366,011 was generated from Siv’s Seafood Restaurant. The financial reports show a profit from Ordinary Activities before income tax in the sum of $88,000 for this period, of which $56,000 profit can be attributed to Siv’s Seafood Restaurant. Sales increased to $432,402 in the 2020 fiscal year despite the onset of COVID-19, which is considered as growth by any measure despite a very challenging trading environment due to the pandemic. The business reported profit from Ordinary Activities before income tax in the sum of $70,000, an increase of 25% from the previous financial year.
The applicant provided evidence to the Tribunal that the nominee was provided with a contract of employment on 30 September 2016, which was for a full-time position as a Restaurant Manager for a period of 2 years that was subject to granting of a permanent visa. The contract included a salary of $45,000 plus superannuation.
The applicant also provided evidence of an RSMS Certifying document from the Queensland Chamber of Commerce and Industry that supported the regional position of Shop Manager on 10 October 2016 on a salary of $45,000, together with PayScale’s that confirmed a salary of $45,000.
The applicant provided evidence that the nominee was a beneficiary of the business trust, which was provided as an incentive because he had not been provided with a great salary. In this regard, the applicant stated that the business trajectory, including COVID was good.
The applicant advised the Tribunal that the nominee successfully completed an English language test through the Pearson Test with a score of 54.
Evidence of Gurant Singh (the nominee)
The nominee stated that he arrived in Australia in 2009 and that he initially undertook a bakery course and subsequently a Diploma of Business Management.
The nominee provided evidence that he completed a Real-estate course and gained certification.
The nominee stated that he joined the business in October 2014 as the Manager and that he performed everything that was required.
The applicant stated that his spouse, Sandhu, was offshore and that since they married in 2017 they have separated.
Post the hearing, the Tribunal was informed, on 19 September 2020, by the Tribunal Registry, that the business Siv’s Seafood Restaurant Pty Ltd was not registered for GST.
On 22 September 2020, the AAT requested the Review Applicant to comment on the following information:
1. Records from the Australian Business Register indicate the ABN 14 600 643 178 is not currently registered for GST. This information is relevant to the review because it may suggest that the business is no longer trading under ABN 14 600 643 178.
2. Please provide an explanation or comment on why the business is not registered for GST.
On 23 September 2020, the representative for the applicant provided the following response:
“The business operates under a trust structure, namely ''Siv's Seafood Restaurant" ABN 87 286 924 124.

The company "S.G.J.K. Investments Pty Ltd" as listed above is the corporate trustee for the Siv's Seafood Restaurant Trust.

As the ABR for the trust shows, the trust (ABN 87 286 924 124) is duly registered for GST and has been since 18 August 2014. A number of BAS have been supplied to the Department / AAT over the years, including all BAS for the last two years, which shows the business is active and lawfully operating, with all appropriate registrations in place. The business continues to operate with a healthy profit margin.
The correct ABN for the trust has been recorded in the nomination application and all associated paperwork.
Per Department policy:
If a business is operated under a trust arrangement, the business will be required to present:
·a nomination application in the name of the trustee as described in the trust deed (for example, “ABC Pty Ltd”) and including details of the name of the trust and the ABN of the trust
·a certified copy of trust deed (relevant pages including the page containing details of the parties to the trust and the signature page).
In accordance, with Department Policy, the application record states the business as 'S.G.J.K. INVESTMENTS PTY LTD ATF ("As Trustee For") SIV'S SEAFOOD RESTAURANT'

Registrations for both the corporate trustee and trust were identified in the nomination application, namely ACN 600643178 / ABN 87286924124.
It appears there has been some confusion regarding the businesses operational structure. In anticipation of the hearing, two separate submissions were provided to the AAT on 21/07/2020 and 05/08/2020 which contained full and up-to-date information about the operating structure, associated registrations and a copy of the trust deed, as well as all financial records pertaining to the business (financial reports, BAS, payroll records etc.). Our online AAT record shows that these documents have been submitted, can you please confirm that these submissions have been correctly received on your end, otherwise we are happy to send again? These submissions contain essential supporting documents which would be helpful in the assessment of this case.
We trust you will agree that the ABN for the corporate trustee is irrelevant for the purposes of this Review Application, as the business operates under a trust structure with a different ABN.”
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The applicant lodged the application to nominate the nominee for the position of Store Manager – ANZSCO Code: 142111 with the business on 12 October 2016 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
Further, in relation to the Tribunal request for comment on the GST registration of the business, on 22 September 2020 and the subsequent response from the applicant’s representative on 23 September 2020, the Tribunal is satisfied that the business is registered for the purposes of GST and has been since 18 August 2014.
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
The applicant provided evidence that the nominating business, 'S.G.J.K. INVESTMENTS PTY LTD ATF ("As Trustee For") SIV'S SEAFOOD RESTAURANT' was first registered with the ASIC on 18 August 2014 and registrations for both the corporate trustee and trust were identified in the nomination application, namely ACN 600643178 / ABN 87286924124. In this regard, the business has three participating shareholders, one of whom, represented the company at the hearing.
Further, the Tribunal is satisfied that the business, based upon the information presently before the Tribunal is actively operating lawfully and is directly operated by a principal shareholder.
Further, the business has demonstrated an economic capacity to support the employment of the nominee for a period exceeding two years.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension having already been employed for almost 6 years on a full-time basis, having first been employed in October 2014.
The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 30 September 2016 and that the nominee has a contract of not less than 2 years. In this regard, the evidence identified that the nominee has a current salary of $45,000 and the position is designated as Restaurant Manager on the organisation chart.
Further, the contract becomes effective upon the nominee being granted the visa and acquiring permanent residency.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal is satisfied that there is no adverse information known to Immigration or the Tribunal about the nominator or a person associated with the nominator.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 30 September 2016 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement.
Further, the applicant attested that the nominee was provided with a Fair Work Information Statement at the time of engagement.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, and that the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied, on the basis of the evidence, that the position and business is located in ‘regional Australia’ and that the applicant applied for Regional Certification, which was granted on 10 October 2016 by the Chamber of Commerce and Industry Queensland for the occupation of Shop Manager (Retail Manager – ANZSCO Code: 142111) for the nominee, Gurant Singh on a salary of $45,000 (at that time).
Further, the Tribunal is satisfied, based upon the evidence that there is a genuine need for the position of Retail Manager to work under the direct control of the business owner/director and that the position was advertised locally and could not be filled by an Australian citizen or permanent resident who is living in the same local area with the equivalent skills and competencies.
Additionally, the Tribunal is satisfied that the scale of the business, with a net profit (after tax) of $56,000 in 2019, warrants the engagement of a Retail Manager, particularly given that the Directors are resident in Brisbane and that the Director giving evidence, operates another retail business and requires a Retail Manager for the Siv’s Seafood Restaurant business to manage a full scope of the operation, including financial, lease arrangements, utilities and banking responsibilities on behalf of the Directors. As such, the Retail Manager operates the business that has a staff of up to 10 employees reporting to the Retail Manager and who reports directly to the owners.
The Tribunal is satisfied, based upon the evidence of the applicant, that the position includes all of the tasks outlined in the position descriptor for a Retail Manager – ANZSCO Code: 142111. In this regard, the applicant confirmed to the Tribunal that the nominee performs the following tasks:
·determining product mix, stock levels and service standards;
·formulating and implementing purchasing and marketing policies, and setting prices;
·promoting and advertising the establishment's goods and services;
·selling goods and services to customers and advising them on product use;
·maintaining records of stock levels and financial transactions (however the Director does provide assistance with this activity);
·undertaking budgeting for the establishment (however the Director does require the assistance of the nominee with this activity);
·controlling selection, training and supervision of staff;
·ensuring compliance with occupational health and safety regulations.

The Tribunal has considered the comparison of the ANZSCO descriptor for the occupation of Retail Supervisor – ANZSCO Code: 621511 and is satisfied that whilst the position includes several of these tasks, the nominee also carries out the tasks of a Retail Manager – ANZSCO Code: 142111 in the breadth of the role performed by the nominee.
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Warren Stooke AM
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)     identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)     directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)     the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)     would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)     all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2020] AATA 4041

25 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction